Our latest update as to any rulings last week of the Planning Court together with any relevant appellate judgments, along with a commentary by Town Legal LLP and links. Where appropriate, we also include other relevant public law rulings from other courts.
This is a list of judgments of the Planning Court following a full hearing, or arising from an appeal from a Planning Court judgment, that were handed down in the preceding week. All links are to the relevant BAILII transcript. Summaries are for information only and are not to be relied upon as advice.
1. Zins, R (On the Application Of) v East Suffolk Council  EWHC 2969 (Admin) (06 November 2020)
Case Summary & Commentary: Click Here
Full case: Click Here
Commentary: The Claimant, Barry Zins, challenged the grant of planning permission by the Defendant, East Suffolk Council, for redevelopment of the former council office complex into a residential development. The Claimant’s arguments, which focused on the Council’s deferral of determination of the details around affordable housing provision, were dismissed.
Following a tender process, Suffolk Coastal District Council (later amalgamated with Waveney District Council to form the Defendant) entered into a conditional contract for sale with Active Urban (Woodbridge) Limited (the Interested Party). The Interested Party applied for permission for a scheme for 100 residential units in July 2017, with a proposed condition requiring 32 affordable housing units. Following an officers’ report, committee members agreed to a condition deferring further details of affordable housing provision (including unit size, location, tenure mix, and the mechanism for potential payment in lieu) until after permission was granted.
The Interested Party then withdrew their application, in order to submit a similar application with less affordable housing, relying on the concept of ‘vacant building credit’. Officers found vacant building credit was not applicable and permission was refused. In July 2019 the Interested Party submitted a third application, essentially the same as the first. Members were advised by the new officers’ report that the “tilted balance” in favour of development under the NPPF was engaged since the policy dealing with housing numbers and distribution in the Core Strategy (policy SP2) was out of date. Planning permission was granted in November 2019, with Condition 10 deferring details of affordable housing provision as considered above.
The Claimant alleged that the Council: (1) erred in its approach in relation to affordable housing; and (2) incorrectly applied the tilted balance in determining the planning application. The first ground was largely based on arguments that the Council should not have deferred the details of affordable housing under Condition 10, as it gave the Council too wide a discretion and relinquished control of the provision to the Interested Party.
James Strachan QC (sitting as a Deputy Judge of the High Court) rejected these arguments. There was nothing unlawful about deferring details of affordable housing under Condition 10 – to serve such a purpose was an “intrinsic feature of conditions”. This did not relinquish any control to the Interested Party, as the Council could simply refuse to accept the Interested Party’s application to discharge the condition if they were not satisfied. In terms of policy compliance, it was first affirmed that supporting text does not form part of policy itself, and that emerging plan policy does not fall into the analysis of policy compliance. It was held that, regardless, the permission was policy compliant, not only because the mix of affordable housing was yet to be determined, but also because the tenure mixes set out represented a target for the area and not a requirement on every scheme. Furthermore, even if the Council were to go on to approve a scheme that was not policy-compliant, this would not necessarily be unlawful – LPAs are entitled to decide that material considerations override the presumption of compliance with the development plan. It was further held that the members were not misled and were well informed of all material considerations, with the Judge pointing to the fact that three applications for the development had been considered, involving numerous reports, meetings and objections.
On the second ground, the Claimant relied on the fact that, after the committee found that policy SP2 was out of date (but before the Council’s decision), an unrelated Inspector decision held that the policy was in fact not out of date. The Claimant argued that, consequently, the matter needed to be referred back to committee. The Court dismissed this argument, holding that even if SP2 should have been considered not out of date, this would have only reinforced the application of the first limb of para 11 of the NPPF, i.e. the presumption in favour of sustainable development means approving development proposals that accord with the up to date development plan. The Court was satisfied that it was highly likely that the outcome would be the same.
The case affirms the ability of LPAs to deal with details of affordable housing provision under condition, and their ability to ultimately reach decisions contrary to policy, provided all material considerations are considered and justify the decision.
Case summary prepared by Jed Holloway
Case Summary & Commentary: Click Here
Full case: Click Here
The High Court has rejected a legal challenge by Hawkhurst Parish Council (‘HPC’) to the lawfulness of the decision of Tunbridge Wells Borough Council (‘TWBC’) on 23 December 2019 to grant planning permission to the developer (McCarthy and Stone Retirement Lifestyles) for the development of 43 retirement apartments on the edge of the village of Hawkhurst in the face of strong objections concerning highway, heritage and environmental impacts. The site is in the High Weald Area of Outstanding Natural Beauty (‘AONB’). The case provides helpful clarification on the correct approach to interpreting and applying national policy in the NPPF in relation to considering cumulative traffic impacts and development in AONBs.
HPC’s judicial review was brought on 3 grounds all of which alleged that TWBC were materially misled by the contents and recommendations of the Officers’ Report (‘OR’). Ground 1 was that the OR had failed to deal with the issue of the highways impacts of the proposed scheme cumulatively with other committed development. Ground 2 was that the OR failed to address a particular heritage development plan policy (Policy EN4) concerning demolition and conservation areas. Ground 3 was that the OR had misinterpreted national policy on the protection to be given to AONBs and that the conclusion that there were ‘exceptional circumstances’ justifying development in the AONB was not reasonably open to TWBC.
As to ground 1, the High Court considered that paragraphs 108 and 109 of the NPPF require decision makers, in assessing an application for development, to ensure that significant impacts of development on the capacity and congestion of the highway network can be cost effectively mitigated to an acceptable degree, but there should only be a refusal on that basis if the residual cumulative impacts (which includes taking account of any mitigation that is proposed by the developer) on the road network would be severe. The High Court went on to state that “severe residual cumulative impacts” are not defined in the NPPF and the meaning is therefore a matter of evaluative judgment for the decision maker. This judgment is likely to require some technical information by way of modelling and calculations, the extent of which would differ depending on whether a full transport assessment or a ‘lighter touch’ transport statement was sufficient and proportionate. Against that policy framework, the High Court concluded, on the evidence, there was no basis for characterising TWBC’s consideration of highway issues as irrational. The High Court noted that the developer had put before TWBC a detailed transport survey which predicted that the development would generate ‘very low levels of traffic.’ There was ‘no specific challenge’ to that prediction by HPC and the local highway authority, Kent County Council, (a statutory consultee) had expressed itself ‘satisfied’ that, when the developer’s public transport contribution was taken into account, there would be ‘no material, let alone a severe, impact on the junction.’
As to ground 2, the High Court concluded that Policy EN4 was not applicable to the proposal, as it did not involve demolition of a building in a conservation area.
As to ground 3, HPC contended that that there were two errors made by TWBC being: (a) an error in relation to whether there were “exceptional circumstances” to justify the development in the AONB for the purposes of paragraph 172 of the NPPF and Policy HD1(B) of the Neighbourhood Plan; and (b) a failure to consider heritage matters in relation to the AONB, where paragraph 172 of the NPPF notes that the “conservation and enhancement of … cultural heritage” is an important consideration in such areas. In relation to (a), the High Court rejected HPC’s submission that the exceptional circumstances judgment was limited to the absence of a 5YHLS and Hawkhurst’s role as a Tier 2 settlement in the Core Strategy. On a fair reading of the OR as a whole, the High Court considered that there were a number of factors which cumulatively went into the conclusion overall that exceptional circumstances existed for the proposed development which included, among other things, alternative locations for housing. In relation to (b), the High Court considered that the effect of the development on heritage assets was ‘treated as important generally in the overall assessment’ and, even had there been a material error in the OR, it was ‘highly likely that the outcome would not have been substantially different’ and therefore the High Court would have refused relief applying section 31(2A) of the Senior Courts Act 1981.
Case summary prepared by Paul Arnett
Case Summary & Commentary: Click Here
Full case: Click Here
The High Court dismissed a challenge by Sevenoaks District Council of a Planning Inspector’s decision that it had failed to comply with the duty to cooperate when preparing the Sevenoaks District Local Plan (“SDLP”). The duty to cooperate is set out in section 33A of the Planning and Compulsory Purchase Act 2004 (“s33A”) and is supplemented by guidance in the National Planning Policy Framework and the Planning Practice Guidance.
The claim was made on four grounds, as follows: firstly, that the Inspector erred in law in failing to apply a margin of appreciation when considering the test under s33A; secondly, that the Inspector failed to correctly interpret and apply the duty to cooperate and conflated that duty with the requirement that a plan be sound; thirdly, that the Inspector failed to have regard to material considerations; and, finally, that the Inspector’s reasons were inadequate. All four grounds were dismissed.
Dove J prefaced his conclusions by analysing the substance of the legal issues which arise in relation to the duty to cooperate; the nature of the decision which the Inspector reached; and the specific basis for her conclusions. He emphasised that the duty under s33A requires cooperation in relation to the preparation of a development plan document “so far as relating to a strategic matter” and this arises in relation to each and every strategic matter individually. There was, therefore, no error involved in the present case by the Inspector focusing upon one of those strategic matters (namely, unmet housing need) in reaching her conclusions. He noted that the duty to cooperate is not simply a duty to have a dialogue or discussion but requires the statutory qualities set out in s33A to be demonstrated by the activities comprising the cooperation. He emphasised (citing previous judicial authority) that the court should afford the decision of an Inspector making a judgment regarding compliance with the duty a substantial margin of discretion.
As regards the Inspector’s conclusions in relation to compliance with the duty to cooperate, these were drawn from evidence in relation to the claimant’s actions further to becoming aware of the detailed extent of its unmet housing need. Once the extent of the unmet need emerged after completion of the Regulation 18 consultation on the SDLP, she found that the claimant should have contacted its neighbouring authorities and engaged constructively in an attempt to resolve the issues arising from the unmet need. Instead, there was no communication or engagement between the emergence of this issue and the start of the Regulation 19 consultation when this would have been reasonably expected. Any engagement took place after the Regulation 19 consultation and just prior to submission of the plan for examination, by which time it was too late to influence plan preparation. The possibility that constructive engagement may have led to the same outcome was irrelevant insofar as compliance with the duty was concerned.
Turning to the grounds of challenge, in respect of Ground 2 (addressed first), Dove J concluded that the conclusions reached reflected a proper interpretation and application of the duty to cooperate, reflecting the statutory requirements and the evidence which was before the Inspector. In particular, they were based on factual findings regarding the lack of constructive and active engagement at a time when it was required in advance of the Regulation 19 version of the SDLP being settled. She was, correctly, not assessing the finding of a particular solution in respect of the strategic issue of unmet housing need, but rather the quality of the manner in which it had been addressed. In respect of Ground 1, Dove J concluded that there was no justification for the suggestion that the Inspector failed to afford a margin of appreciation for the claimant; the Inspector was ultimately required to reach conclusions in relation to the statutory test which she did.
In respect of Ground 3, Dove J found that the Inspector had regard to all of the evidence that had been placed before her, clearly addressing the detailed material in relation to duty of cooperation meetings and the preparation of joint evidence. In respect of Ground 4, he found that there was no defect in the Inspector’s reasoning which was full, detailed and justified.
Case summary prepared by Victoria McKeegan
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